Turner v. Turner

• Decision Date: 20 June 1895
• Citation: 107 Ala. 465,18 So. 210
• Parties: TURNER v. TURNER ET AL.
• Court: Alabama Supreme Court

18 So. 210

107 Ala. 465

TURNER v. TURNER ET AL.

Supreme Court of Alabama

June 20, 1895

Appeal from probate court, Cleburne county; S. P. Baker, Judge.

Nancy Turner, the widow of L. M. Turner, deceased, filed her application in the probate court of Cleburne county to have set apart to her, as exempt from administration, a homestead in the lands of which her husband died seised. Commissioners were appointed, and their report, setting apart an hotel as a part of his homestead as exempt to the widow, was excepted to by the heirs of the said L. M. Turner, deceased, and a contest was thereupon instituted. This contest was sustained by the court, and the report of the commissioners was set aside. The widow appeals from the decree of the probate court setting aside the report of the commissioners. Affirmed.

Aiken &amp Burton, for appellant.

Merrill & Bridges, for appellees.

HEAD J.

The appeal is prosecuted from a decree of the probate court setting aside the report of commissioners appointed to allot the homestead exemption to the widow of L. M. Turner deceased. The sole question presented by the record is whether that portion of the property of the deceased husband owned at the time of his death, upon which is located the hotel, was a part of his homestead, and as such exempt from administration, in favor of the widow. The facts are that the decedent resided at the time of his death upon property owned by him, situated on the west side of Oxford street, in the town of Edwardsville, and he had, with the exception of two brief intervals, resided there for many years prior to his death. Across the street from his dwelling, in a different square, was the lot with the hotel building thereon, erected by one Hogan, which property the decedent acquired. He had during his life, occasionally taken meals at the hotel, for which he paid as other guests, and at one time he boarded there about six months. He also stored there a few articles of furniture, but, beyond what we have stated, he had never occupied it. On the contrary, it had been rented to tenants who conducted it as a house of public entertainment; and one Foster was in possession of it, as a tenant, when Turner died. The home place of the decedent, with its yard, stables, garden, and grass lot for pasture, seems to have been even more complete than urban homesteads usually are; and the hotel property in no way contributed to the convenience or enjoyment of the residence, unless the use of the rents therefrom, in the support of his family, can be so considered. According to the express provisions of sections 2507 and 2543 of the Code of 1886, it is "the homestead with the improvements and appurtenances," not exceeding the statutory limit as to area and value, which is exempt from administration, in favor of the widow and minor children. Additional words of description are used by section 2550, which provides for the appraisement of "the homestead of the decedent, occupied by him at the time of his death or to which he was then entitled." Construing these sections together, and with reference to section 2539, we do not doubt that actual occupancy of the property is as essential to a valid claim of homestead exemption in this state as it ever was, except in the single case of the filing of a declaration of claim to a homestead exemption in the office of the probate judge, upon leaving the homestead temporarily, or a leasing of the same. "Homestead," ex vi termini, means the family seat or mansion; and the change of verbiage in our statute by the codifiers, in compiling the Code of 1886, whereby they omitted from section 2507 the phrase, "owned and occupied by any resident of this state," was not intended to affect the well-settled rule recognizing actual occupancy, except in the single case stated, as an essential condition of a valid homestead exemption. Beard v. Johnson, 87 Ala. 729, 6 So. 383; Jaffrey v. McGough, 88 Ala. 648, 7 So. 333. And it is to the case of temporary leaving or leasing, supplemented by the declaration filed with the probate judge as provided by section 2539, that the words, "or to which he was then entitled," in section 2550, must be referred. We do not, of course, overlook the case provided by section 2544, where the decedent, at the time of his death, had no homestead; but that section has no application here, since it...